The D.C. U.S. Attorney’s Office has interviewed former FBI Director James Comey as they consider whether or not to charge his former deputy Andrew McCabe. As you probably recall, McCabe was fired a day before he was set to retire. DOJ Inspector General Michael Horowitz subsequently released a report stating that McCabe had lied about arranging a leak to the Wall Street Journal on four separate occasions, three of them under oath. One of the people McCabe allegedly lied to was his boss, James Comey. From the Washington Post:
By the inspector general’s telling, in seeking to advance his own interests, McCabe authorized two FBI officials to talk to the Wall Street Journal about a story he believed would cast him as standing in the way of a probe of Hillary Clinton’s foundation. Then, according to the inspector general, McCabe misled Comey and FBI and inspector general investigators about having done so…
Comey and McCabe offered varying accounts of who authorized the disclosure for the article. They discussed the story the day after it was published, and Comey, according to the inspector general’s report, told investigators McCabe “definitely did not tell me that he authorized” the disclosure.
McCabe has countered that emails between the two “clearly show that Mr. McCabe specifically advised Director Comey that he was working with colleagues at the FBI to correct inaccuracies in the story before it was published, and that they remained in contact through the weekend while the work was taking place.” Those emails, though, were in reference to a different Wall Street Journal story about donations McCabe’s wife had received from a political action committee controlled by Terry McAuliffe, a Clinton ally, McCabe’s lawyer has acknowledged. The inspector general ultimately credited Comey’s account.
Lying to Comey might not itself be a crime. But the inspector general alleged McCabe misled investigators three other times.
So if lying to Comey wasn’t a crime, why bother talking to Comey? It’s almost certainly because on of the other three instances of lying McCabe was accused of is based on Comey’s recollection of events. In his first two interviews under oath, McCabe told agents he had not authorized any leaks and had no idea who had done so. But in November 2017, McCabe was interviewed again and completely revised his story. From the IG report’s summary [emphasis added]:
On November 29, 2017, when questioned under oath by the OIG in a recorded interview during which he contradicted his prior statements by acknowledging that he had authorized the disclosure to the WSJ, McCabe lacked candor when he: (a) stated that he told Comey on October 31, 2016, that he had authorized the disclosure to the WSJ; (b) denied telling INSD agents on May 9 that he had not authorized the disclosure to the WSJ about the PADAG call; and (c) asserted that INSD’s questioning of him on May 9 about the October 30 WSJ article occurred at the end of an unrelated meeting when one of the INSD agents pulled him aside and asked him one or two questions about the article. This conduct violated FBI Offense Code 2.6 (Lack of Candor – Under Oath).
In short, one of the allegedly false claims McCabe made was that he had told Comey all about his authorization of leaks to the WSJ. While McCabe’s conversation with Comey was not under oath, his description of what he told Comey during that conversation was made under oath. If Comey’s recollection is different, then obviously someone is lying.
Comey offered support for McCabe in January:
Special Agent Andrew McCabe stood tall over the last 8 months, when small people were trying to tear down an institution we all depend on. He served with distinction for two decades. I wish Andy well. I also wish continued strength for the rest of the FBI. America needs you.
— James Comey (@Comey) January 30, 2018
But I don’t think Comey is about to change the story he has already told repeatedly in public about what McCabe told him. Even if Comey were to have a change of heart and change his story, there would still be two other clear instances of McCabe lying under oath that wouldn’t be cleared up by whatever Comey said. But we’ll have to wait an see if Comey’s story changed and if the U.S. Attorney decides to charge McCabe with lying to the FBI.